JUDGMENT
A. Pasayat, J.
1. The United India Insurance Co. Ltd. (hereinafter referred to as the ‘Insurer’) calls in question the Second Motor Accidents Claims Tribunal (S.D.) Berhampur (hereinafter referred to as the ‘Tribunal’).
2. Factual background as portrayed by the parties is as follows:
A claim was lodged under Section 110-A of the Motor Vehicles Act, 1939 (in short ‘the Act’) by Smt. Susila Panigrahy and her minor children (hereinafter referred to as the ‘claimants’), claiming a compensation of Rs. 1,50,000/- from Labela Dharma Sahu (hereinafter referred to as the ‘owner’) and the insurer, on the ground that one Niranjan Panigrahy (hereinafter referred to as the ‘deceased’) lost his life on 20.2.1988 in an accident caused by a passenger bus bearing registration No. OSC 7882 belonging to the owner, which was the subject-matter of insurance by the insurer. According to them, the deceased was waiting for a bus, but before he could actually board it, the vehicle hit him as a result of which he fell down, sustained injuries and subsequently breathed his last. He was running a shop at Golantara selling fruits and vegetables and was earning about Rs. 1000/- per month and was contributing for maintenance of his family out of the said income. The deceased was aged about 45 years at the time of his death. The Tribunal held, that monthly income was about Rs. 1,000/- per month after deducting 1/3rd for personal expenses, held that annual contribution would be in the neighborhood of Rs. 9,000/-, and adopting a multiplier of 11 fixed entitlement of claimants at Rs. 99,000/-. It was held that liability of the insurer was unlimited, and accordingly liability was fixed on the owner, to be indemnified by the insurer. It was stipulated that the amount was to be paid with interest @ 6% from the date of claim within three months. A default rate of ii-ierest @ 12% was stipulated in case of failure to pay within the aforesaid period.
3. Mr. Misra, learned Counsel appearing for the insurer has urged the following points in support of appeal:
(i) The deceased was to be treated as a passenger and therefore, liability as fixed by the Tribunal is not sustainable. According to him, even if for the sake of argument, it is conceded that the deceased was not a passenger and was a third party so far as the vehicle is concerned, yet liability could not have been fixed beyond Rs. 50,000/- in the absence of material being brought on record by either claimants or owner that the insurer understood any liability beyond the statutory liability.
(ii) Quantification of compensation is arbitrary. Fixation of annual contribution at Rs. 9,000/- and adoption of multiplier of 11 is arbitrary.
(iii) Stipulation regarding default rate of interest is contrary to law.
Learned Counsel for claimants however, submitted that until a person actually boards a bus, he cannot be treated to be a passenger. It is submitted that the insurer having not taken any specific plea about its liability, the Tribunal was justified in its conclusion about liability being unlimited.
4. I shall first deal with question as to whether the deceased could be taken to be a “passenger”. Difficulty arises when the person has not actually boarded the vehicle. Legislative intent is clear from proviso (ii) to Sub-section (1) of Section 95 of the Act which reads as follows:
95. Requirements of policies and limits of liability.–(1).
XX XX XX Provided that a policy shall not be required. (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or xx xx xx
Clause (b) of Sub-section (2) of Section 95 inter alia, provides that subject to the proviso to Sub-section (1), where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of, or in pursuance of a contract or employment in respect of persons other than passengers, carried for hire or reward, a limit of fifty thousand rupees in all, and in respect of passengers a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers; a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers; a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers and subject to the limits aforesaid; ten thousand rupees for each individual passenger, in any other cases. By notional extension of coverage protection of liability in respect of death or bodily injury to persons being carried in or upon entering or mounting or alighting the vehicle at the time of occurrence of the event is given in terms of proviso (ii) to Sub-section (1) of Section 95.
5. A plea has been taken by Mr. Misra for the insurer that where the persons has not actually paid hire or reward, he cannot be construed to be a person being carried for hire or reward. This plea, though attractive is not acceptable in a case covered by proviso (ii) to Sub-section (1) of Section 95. When the person enters or mounts the vehicle, he is just making an entry to die vehicle, and possibility of his having opportunity of paying hire or reward may not in all cases arise. In many cases he pays the fare after he enters a vehicle. To cover such a situation proviso (ii) to Sub-section (1) of Section 95 appears to have been enacted. Where a person who did not actually get into the vehicle sustained injuries from the moving vehicle while making an attempt to get entry into it cannot be said to have suffered death or bodily injury while being carried in or upon entering or mounting or alighting from the vehicle. There must be material to show that a person had any physical contact with the vehicle while entering or mounting if he was trying to get in, alighting from the vehicle, if he was trying to get out, when the accident occurred. The use of the words “entering”, “mounting”, “alighting” clearly shows that person has already got physical nexus or link with the vehicle. A person who runs after a vehicle or comes towards a vehicle to enter into it, cannot be treated as a passenger so long as he has not entered or mounted it. Facts of the present case show that the deceased had not actually got into the vehicle, and was merely making an attempt to get into the vehicle without any physical contact. Therefore, he cannot be construed to be a passenger to be encompassed by provisions of proviso (ii) to Sub-section (1) of Section 95. Additionally it was not the case of the insurer before the Tribunal that the deceased was a passenger. No material was placed on that regard. It is accepted that if the deceased is not taken to be a passenger, he has to be treated as a third party so far as the vehicle is concerned. Statutory liability in case of a third party at the relevant time was Rs. 50,000/-.
6. Further question is whether the insurer had undertaken any liability beyond the statutory liability. With reference to written statement filed by it before the Tribunal, it is submitted by learned Counsel for insurer that in paragraph-9 it has been specifically averred that liability if any, was to the maximum extent of Rs. 50,000/-. Learned Counsel for claimants however, submits that complete policy was not before Insurance Company, and an adverse view was to be taken. This plea has no substance in view of decision of this Court in Fanilal Sinha v. Divisional Manager, Oriental Insurance Co. Ltd. and Ors. A.H.O. No. 97 of 1991 where it was held that where a plea is taken that liability is unlimited, there must be specific assertion to that effect by the claimant and/or insured. Claim petition in the case at hand does not breathe a word about the extent liability of the insurer. It has been merely stated that applicants were entitled to obtain compensation from the owner of the vehicle which caused accident, and the insurer which insured it. The owner of the vehicle took a specific plea that entitlements of claimants would not exceed Rs. 15,000/-. There is not even a mention about insurance of the vehicle by the insurer, leave aside the plea of unlimited liability. Therefore, the Tribunal was not justified to hold that liability of the insurer was unlimited.
7. In view of my conclusion that the deceased was a third party so far at the offending vehicle is concerned, liability of the insurer would be Rs. 50,000/- unless it is proved that any extra premium was accepted by the insurer to indemnify liability beyond the statutory liability. The Tribunal has not considered this aspect in the proper perspective. In the fitness of things therefore, the Tribunal should reconsider whether there was any liability of the insurer beyond Rs. 50,000/-. So far as quantum of compensation is concerned, the Tribunal has held monthly income of Rs. 1,000/-. It has been observed that 1/3rd was to be deducted for personal expenses. But monthly contribution was held to be Rs. 750/- per month. This appears to be arithmetically inaccurate. Annual contribution is to be taken at Rs. 8,000/-. So far as proper multiplier to be adopted is concerned, I find mat the age of the deceased was 45 years as evident from the evidence on record. Considering that, proper multiplier to be adopted would be 10, and on that basis entitlement of claimants comes to Rs. 80,000/-. So far as default rate is concerned, in view of the Division Bench decision in this Court in the Oriental Insurance Co. Ltd. v. Harapriya Nayak and Ors. 1994 (1) C.L.R. 88 the same cannot be maintained. However, rate of interest would be @ 9% from the date of claim till payment of compensation quantified at Rs. 80,000/-. There is no quarrel over the position that the insurer is primarily to indemnify Rs. 50,000/-. Let this amount along with interest from the date of claim @ 9% be paid within three months from today. In respect of the balance amount, the Tribunal shall permit the parties to place materials in support of their respective claims regarding liability, if any, of the insurer beyond Rs. 50,000/-. Adjudication shall be restricted to that question alone. To avoid unnecessary delay the parties are directed to appear before the Tribunal on 18.2.1994 without any further notice so that the Tribunal can fix up a date for hearing. The insurer shall withdraw the amount deposited in this Court and re-deposit the same before the Tribunal, so that claimants on being identified by Counsel for them before the Tribunal can withdraw the same. Direction regarding percentage of fixed deposit to be made and time of deposit as contained in the Oriental Insurance Company Ltd. ‘s case (supra) shall be given effect to by the Tribunal, which shall pass appropriate orders in that regard.
The Misc. Appeal is disposed of accordingly.